DPP v Korras [2019] VCC 1681 — offender’s devotion to care of handicapped mother not such as to constitute exceptional circumstances of type sufficient to enliven s 16A(2)(p), however sentencing judge accepted any sentencing of imprisonment by reason of offender’s mother’s ill health would weigh heavily on offender in a custodial environmentCluett v The Queen [2019] WASCA 111 — offender’s autism spectrum disorder mean imprisonment would be much more onerous for offender than ordinary prisoner, as difficulty in interacting with others makes it harder for offender to cope with prison regime while eccentricities which are manifestation of that disorder likely to make offender target for bullyingValsamakis v The Queen [2016] NSWCCA 156 — difference in post-sentence conditions does not necessarily demonstrate failure to appreciate circumstances of hardship.R v UE [2016] QCA 58 — burden of imprisonment increased where offender spends imprisonment in expectation of deportation on release.Cappis v The Queen [2015] NSWCCA 138 — foreign status of strictly limited significance as offender intentionally visited Australia to commit crime.*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

There is no explicit recognition of hardship to the offender as a relevant sentencing factor in s 16A(2) of the Crimes Act 1914 (Cth).1

At common law, hardship may be relevant where an offender will be required to serve their sentence under additionally onerous or burdensome conditions. 2

The common law has also recognised that a conviction and/or sentence may result in particular hardships for some offenders. For example, an offender may suffer a particular hardship by way of public opprobrium when convicted for their crimes.

There are some listed sentencing factors in s 16A(2) of the Crimes Act 1914 (Cth) which may arise for consideration when hardship to an offender is raised. For example, s 16A(2)(m) requires a court to take into account the character, antecedents, age, means and physical or mental condition of the offender, and s 16A(2)(h) requires a court to take into account the degree to which an offender has cooperated with law enforcement.

2. Hardship resulting from assistance to authorities

Under s 16A(2)(h) of the Crimes Act 1914 (Cth), a sentencing judge is required to take into account the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence(s).

It is relevant to consider any hardship that may result from both the risk of reprisals against the offender, and that the offender may be placed in protective custody, when determining the extent of the allowance to be made for cooperation.

2.1 Risk of reprisal

When determining the extent of the allowance to be made for co-operation it is relevant to take into account whether the offender is likely to be subject to threats or worse treatment from other prisoners while serving a sentence of imprisonment: DPP (Cth) v AB [2006] SASC 84, [42].

Leniency may be afforded to an offender who is at grave risk of being killed or injured while imprisoned. However, the weight that should be given to that risk depends on all the circumstances of the case, including the likelihood of its occurrence: York v The Queen [2005] HCA 60, [23] (McHugh J).

A court may also take into account that an offender has been placed at a real risk of harm when released from prison in retribution for the assistance provided to authorities: C v The Queen [2013] NSWCCA 81, [37]-[38], [44].

2.2 Protective custody

A court should take into account that an offender will serve their sentence under protective conditions because of their assistance to authorities: C v The Queen [2013] NSWCCA 81, [37]-[38].

However, courts have noted that the conditions of protective custody can vary greatly, and that it cannot be assumed that being placed in protective custody will necessarily make a sentence more onerous. 3 Therefore, where an offender seeks to have the hardship associated with protective custody taken into account, evidence should be placed before the sentencing judge showing the circumstances of that custody and the hardship it is likely to cause. 4

In C v The Queen [2013] NSWCCA 81, the Court noted that there was conflicting authority on whether protective custody could be taken into account without the offender providing any further evidence as to the particular hardships that protective custody could involve. 5 In C v The Queen [2013] NSWCCA 81, the Court found that it was an error to ‘effectively ignore that the applicant was in the Special Purpose Centre’. 6 However, in the absence of any further evidence, the weight to be given to that fact could only be modest.7

3. Hardship resulting from onerous conditions of imprisonment

3.1 General principles

Where an offender suffers hardship from being subjected to prison conditions that are materially more onerous than normal, this may be a factor mitigating the sentence imposed: Muldrock v The Queen [2011] HCA 39, [19].

In the case of Milenkovski v Western Australia [2014] WASCA 48, dealing with WA offences, the Court reviewed authority from various jurisdictions regarding the relevance of onerous conditions of imprisonment. 8 Buss JA (McLure P and Mazza JA agreeing) summarised the relevant principles to be derived from those cases at [151] – [157]. The summary, paraphrased, is as follows:

The fact that an offender has served or is likely to serve part of a term of imprisonment in conditions that are more onerous than those applicable to mainstream prisoners is a relevant sentencing factor;

If it is submitted or apparent at sentencing that this is likely, the prosecutor and defence counsel should provide the judge with all available information as to

the facts and circumstances of the custody

how those facts and circumstances differ from those applicable to mainstream prisoners, and

the nature and extent of any consequential hardship or benefit to the offender;

The weight to be given to an offender’s detention under more onerous conditions depends on all the facts and circumstances including the reasons why the offender requires protection, and the likely duration of the more onerous conditions. Any benefits, as well as hardships to the offender from the protection must be taken into account;

Greater leniency will be given to an offender who is at risk of reprisals due to cooperation with law enforcement, than an offender who is at risk due to grudges arising in the context of illegal activities. This is because of the public policy rationale for allowing leniency or a discount for cooperation, which is absent where the risk to the offender is attributable to their criminal activity;

Greater leniency will be given where the onerous conditions have caused or exacerbated an offender’s physical or mental illness or disability;

The justification for allowing some leniency or a discount for onerous conditions is that time spent in custody under more onerous circumstances is in general, equivalent in evaluating the sentencing objectives of punishment, denunciation and deterrence, to a longer period in custody under less onerous circumstances. 9

3.2 Protective custody resulting from nature of offender

3.2.1 Former law enforcement officers

Where an offender is placed in protective custody because of prior employment in law enforcement, this may be a factor mitigating the sentence imposed.

In Adams v Western Australia [2014] WASCA 191, a case involving both state and federal offences committed by a former AFP officer, the Court applied the principles from Milenkovski to find that the sentencing Judge had erred in failing to take into account the fact that prison conditions for the offender would be more restrictive than for other prisoners. The Court received detailed evidence as to the nature of the conditions of imprisonment, and Mazza JA (Buss and Newnes JJA agreeing) stated at [132]:

On the evidence provided by Mr Pittard, I am satisfied that, as a result of the appellant’s service with the AFP, his movements and participation in programs has been, and will continue to be, adversely affected. Further, based on common experience, former police officers are at greater risk of assault and intimidation than the general prison population. Consequently, it may be said that the appellant’s imprisonment will be materially more arduous than for other prisoners.

In the state case of R v Liddy (No 2) [2002] SASC 306, the Court considered the situation of a former judicial officer who was placed in protective custody due to both his former status as a magistrate and the nature of his crimes (discussed below). In relation to his former status as a magistrate, the court expressed conflicting opinions on affording leniency due to the protective custody:

Mullighan J stated at [114], [123]:

In my view, a sentence should not be reduced because the crime was committed by a member of the judiciary. Usually that would be a matter of aggravation and should not operate in any way as a matter of mitigation.….
The appellant was a former prosecutor in the Crown Prosecutor’s Office and a magistrate. He was well aware of the type of sentence which would be imposed upon him if his offending was detected and proved. Also, he would have known of the public opprobrium which his offending would attract and of the attitude of prisoners towards him because of the nature of his offending and his having been a magistrate. Nevertheless he committed these very serious offences.
…
For these reasons I would not reduce the sentence because of the harsh circumstances in which the appellant finds himself in prison. It cannot be the case that the whiter the collar of the offender or the greater the revulsion at the crime, the lower the sentence.

However, Williams J stated at [146]:

However, there comes an extreme point where the hardship of protective custody made necessary by resentment amongst prisoners as to an offender’s previous occupation may properly attract some discount to lessen the impact of undeserved punishment associated with solitary confinement without normal privileges. The difficulty in the present case is that Liddy took advantage of his office to commit these infamous crimes. He must expect to suffer particular shame as a disgraced magistrate but gaol inmates with long memories cannot be allowed to settle old scores. The need for Liddy’s solitary confinement is partly attributable to the grudge which many within the prison system may be expected to bear against him as a magistrate by reason of the experiences of themselves and their friends at his hands. Therefore, I consider that the conditions which he is enduring do warrant some reduction in sentence insofar as the extraordinary need for his confinement in isolation arises from a justifiable fear of reprisals unconnected with Liddy’s crimes.

Gray J stated that the mitigatory effect of protective custody depends on the facts and that in the present case the mitigatory effect was ‘much less’ than in cases involving an offender’s physical disability or cooperation with law enforcement. 10

Finally, the appellant was separated from the general prison population for his own protection because, being a member of an outlaw motorcycle gang, his safety was at risk from other inmates who were members of rival motorcycle gangs. The evidence suggests that the appellant’s membership of the motorcycle gang was voluntary.

Against that broad factual background, the steps taken by prison authorities to protect the appellant from risks directly associated with his voluntary and continuing membership of a motorcycle gang is not a mitigating factor. Even if I am wrong in that regard, the weight to be attached to it would not cause me to conclude that a different individual or total sentence should be imposed. 11

However, Buss JA found at [204]:

The circumstances of the appellant’s incarceration while he was in the MPU were a relevant sentencing factor and had to be taken into account. The trial judge was not entitled to ignore those circumstances because the threat to the appellant’s safety arose from grudges formed in the context of illegal activities preceding his arrest. A very small discount should have been allowed in the determination of the individual sentences and the total effective sentence for the conditions of the appellant’s detention in the MPU before sentencing.

3.2.3 Offender’s personality

In the state case of Tazroo v Police [2005] SASC 14, the Court declined to mitigate the sentence where the offender was serving his sentence in protective custody due to personality differences with other prisoners. Sulan J stated at [19]:

…it is the responsibility of the correctional services authorities to ensure that prisoners are not subject to undue hardship in serving their sentences. The fact that a prisoner may have difficulty in relating to other prisoners and, therefore, some arrangements must be made for that prisoner to be kept separate from others is not, in itself, a basis to reduce what would be an appropriate sentence; see: R v Liddy (No 2) (2002) 84 SASR 231 at 260-266.12

3.2.4 HIV status

In R v De Silva [2011] NSWSC 243, the offender was HIV positive and the evidence suggested that he would be subjected to harassment from other prisoners. Buddin J stated at [70]:

The fact that the offender had the HIV virus was canvassed at length by Palmer J and it has been necessary for me to do so as well. It seems inevitable that the offender’s status will become known within a short period of time after his return to custody. The evidence demonstrates that the offender was indeed subjected to harassment from other inmates during his earlier sentence. He is unlikely to be treated any differently this time. For those reasons it is appropriate to give some weight in the sentencing process to the fact that the offender will find the circumstances in which he will serve his sentence more burdensome than would otherwise be the case: see also Leighton v R [2010] NSWCCA 280 and s 16A(2)(m) of the Act [Crimes Act 1914 (Cth)].

3.3 Protective custody resulting from nature of offence

Where an offender is subject to protective custody because of the risk of reprisals from other prisoners expressing their distaste at the crimes committed by the offender, this may be a factor that mitigates the sentence imposed. However courts are less willing to regard protective custody that has been imposed for this purpose as mitigating. 13

I accept that each of you has been in protection as a result of the classification of your offences, and you have had a more limited ability to mix, work and exercise than if you had been in mainstream. I also accept that you will remain as protection prisoners for some time, possibly for the entire duration of your incarceration. This is the type of offence that would cause ill-feeling amongst others in the prison population and you need to be protected from that. It is a factor I will take into account in determining the appropriate level of imprisonment. 14

Protective custody is often imposed in cases involving the abuse of children, as it is common for such offenders to be subjected to assaults by other prison inmates. 15 There is conflicting opinion on whether protective custody imposed for this purpose can mitigate a sentence.

For example, in AB v The Queen [1999] HCA 46, mitigation for protective custody resulting from the nature of the offence was recognised. This case involved a former member of a religious teaching order who pleaded guilty to 67 offences of a sexual character against 15 boys and girls at schools where he was a teacher. Kirby J stated at [105]:

… [I]t is well recognised in England and in Australia that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison. In a sentence already accepted as being at least at the upper extremity of that available, and acknowledged by the sentencing judge as likely to be regarded by some as “overly harsh”, this consideration might not have been given as much weight as it deserved (footnotes omitted).

The NSW Court of Criminal Appeal reconsidered the sentence in R v AB [2000] NSWCCA 467.Barr JA (Spigelman CJ agreeing) stated that because the offender was a child sex offender and would be kept in protection, he was entitled to additional consideration ‘because in the circumstances he will find his sentence harder to serve than it would otherwise be’. 16

I regret that I am unable to accept the proposition that the reason for the harsh conditions in custody is not to the point. Informers and others who cooperate with the police usually provide benefits to the community in that offenders may be brought to justice and that is often, although not always, cogent evidence of remorse and contrition. However, there are no such benefits to society in the circumstances of cases such as the present case.

Williams J in R v Liddy (No 2) [2002] SASC 306, did afford a discount to the offender based on the harshness of the prison conditions, however he stated this discount was justified insofar as the need for protection arose from a fear of reprisals due to his former occupation as a magistrate, which were unconnected with his crimes. 17

In the state case of Houghton v Western Australia [2006] WASCA 143, the Court reviewed a number of authorities, including Liddy (No 2). The Court noted that hardship due to onerous prison conditions is generally more influential on the sentence imposed where the conditions ‘are not a consequence of the nature of the offence committed by the offender.’ 18

…the weight to be given in the sentencing outcome to an offender’s detention under conditions that have been or are likely to be materially more arduous than those applicable to the general prison population will depend on all the facts and circumstances of the case including, for example, the reasons why the offender required or is likely to require protection… (emphasis added)

3.4 Isolation from family or community

A sentence of imprisonment may be more onerous on an offender who is isolated from their family or community, such as where the offender is a foreign national.

Where an offender has entered the country for the purpose of committing the crime, most often in drug importation cases, the hardship caused by imprisonment in a foreign country is of limited significance. In R v Ferrer-Esis (1991) 55 A Crim R 231, 239 Hunt CJ stated:

The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent) has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact.

I acknowledge that the respondent’s imprisonment in Australia would be a greater burden than for some others given his limited English skills and distance from his family in Spain. However, I agree with the sentencing judge that this factor is of “strictly limited” significance (see also R v Ferrer-Esis (1991) 55 A Crim R 231 at 18). Many persons convicted of importing drugs will not be Australian residents and will have only limited, if any, capacity in the English language. 19

However, Ferrer-Esis has been distinguished in cases where the offender did not enter the country for the purpose of committing the crime.

For example, in R v Cruz; ex parte Cth DPP [2010] QCA 90, the offender was convicted of importing child pornography material contrary to s 233BAB(5) of the Customs Act 1901 (Cth). The offender worked as an engineer on commercial shipping, and had arrived at Brisbane airport on a transit visa, intending to sign onto a merchant vessel at Gladstone, when customs officers searching his baggage found the child pornography material. Holmes JA (Muir and Chesterman JJA agreeing) found that the sentencing judge had not placed excessive weight on the offender’s separation from his family, stating at [12]:

Ferrer-Esis is readily distinguished: that case involved the importation of cocaine into Australia for reward, whereas the respondent here clearly did not enter the country “specifically and quite deliberately” to import pornography. And in any event, Hunt J’s statement was far from absolute in its terms. The learned judge in this instance was entitled to give weight to the respondent’s isolation and separation from his family and to reflect those circumstances by reduction of the custodial component of the sentence. In addition, s 16A of the Crimes Act 1914 (Cth) obliged her Honour to take into account the effect of the sentence on the respondent’s family. 20

3.5 Maximum security

Where an offender will be imprisoned in a maximum security prison or subjected to more strict security conditions than mainstream prisoners, this may be taken into account as a mitigating factor. For example, in R v Lodhi [2006] NSWSC 691, the offender’s classification as a maximum security prisoner meant that he was held in segregated custody, shackled while out of his cell, constantly monitored and filmed by video camera. Whealy J outlined in detail the nature and extent of the restrictions placed upon the offender, 21 and stated at [88]:

In my view, the Court is entitled to make some allowance in the sentencing process for the conditions of imprisonment, which will be imposed on the offender here. This is particularly so because of the fact that those conditions of imprisonment are imposed by virtue of a classification following on conviction. 22

While cultural background is no longer a sentencing factor which is ‘automatically’ considered under s 16A(2), cultural background remains a matter that a sentencing court may have regard to under the common law, 24 as s 16A(2) is not an exhaustive statement of the matters to which the court may have regard. 25 Cultural background may also be relevant to an offender’s antecedents, which a court is to take into account under s 16A(2)(m).26

An individual’s membership of a particular race may be relevant to the sentencing determination where a term of imprisonment might be ‘particularly burdensome’ 27 because of the offender’s cultural or ethnic background. 28

While the same sentencing principles are to be applied irrespective of the race of a particular offender, courts are bound to take into account all material facts including those which exist only by reason of the offender’s race or ethnicity: Bugmy v The Queen [2013] HCA 37, [39]. 29

For example, in R v DS [2005] VSCA 99, [19] the Court noted that serving a term of imprisonment would be of particular difficulty for the offender, a Thai national, given ‘her cultural background and isolation in Australia’. 30

3.7 Religious background of offender

Where an offender’s religious practices are likely to make prison more onerous for that offender this may be taken into account as a mitigating factor. In DPP (Cth) v Goldberg [2001] VSCA 107, Vincent JA (Winneke P and Batt JA agreeing) stated at [43]-[45]:

It is reasonable to anticipate that a person, who, in accordance with cultural conventions or religious observances, dresses or behaves in some respects differently from those around him, may be subjected to discrimination or harassment by other prisoners. Little imagination is required to see how this might impact upon the degree of hardship associated with the sentence to be served. The significance attributed to such considerations in a specific case must, of course, be assessed in the light cast by all of the circumstances relevant to the offence and offender concerned (emphasis added).

3.8 Advanced age

Section 16A(2)(m) of the Crimes Act 1914 (Cth) requires a court to take into account various factors personal to the offender including their age. Advanced age may be relevant where some circumstance associated with that age, such as ill health or mental frailty, make imprisonment more onerous on the offender than normal. Where there is evidence sufficient to justify such a conclusion, it may be taken into account as a mitigating factor: Gulyas v Western Australia [2007] WASCA 263, [54] (Steytler P, McLure and Miller JJA). 31

Account may also be taken of hardship for the offender arising out the offender’s knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release: Gulyas v Western Australia [2007] WASCA 263, [54] (Steytler P, McLure and Miller JJA).

3.9 Physical Condition

An offender’s physical condition may be relevant where that condition will make prison more onerous for the offender, or where there is a serious risk of imprisonment having a gravely adverse impact on the offender’s health: R v Smith (1987) 44 SASR 587. 32 However, where physical condition is considered to be relevant, the extent of the mitigation must be balanced against the seriousness of the offence: Leighton v The Queen [2010] NSWCCA 280, [36] (Price J, Simpson J and Howie AJ agreeing).

For example, in Leighton v The Queen [2010] NSWCCA 280, the Court considered an appeal against sentence imposed on a 72 year old offender who suffered from a number of medical conditions. Price J (Simpson J and Howie AJ agreeing) stated at [38]-[39]:

…[T]here is an abundance of evidence, which demonstrates that the applicant’s ill health will make his time in gaol significantly harder. He suffers from chronic osteoarthritis in the hips, knees and shoulders, his mobility is compromised as is his breathing. He experiences chronic neck and back pain and his vision is adversely impacted upon by shingles. He has difficulties dressing himself and standing or sitting for any length of time. The austerity of prison conditions will add to the problems that the applicant has encountered in his daily living…

In my respectful opinion, some weight should have been given to the applicant’s ill health in determining the sentences…When balanced against the seriousness of the offences, I consider that the extent of the mitigation should have been modest.

3.10 Mental condition

Where an offender suffers from mental illness or intellectual disability, the court may need to be more lenient in its approach to sentencing. An offender’s mental condition may have a bearing on the kind of sentence imposed, and the conditions in which it should be served: R v Verdins [2007] VSCA 102.33

Whilst the appropriate penalty for some serious crimes will, notwithstanding the mental condition of the offender, be imprisonment, consideration of the offender’s personal circumstances may be reflected in the suspension of the sentence or in the setting of the non-parole period: Mason-Stuart v The Queen (1993) 61 SASR 204, 205-206.

If an offender’s mental condition will make his or her time in custody more burdensome, the length of the prison term or the conditions under which it is served may be reduced: DPP (Cth) v De La Rosa [2010] NSWCCA 194, [177]. 34 However there must be an evidentiary basis for a finding that an offender’s mental condition will render the imprisonment more burdensome than for other offenders: R v Donald [2013] NSWCCA 238, [77].

Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will also be a factor tending to mitigate punishment: R v Verdins [2007] VSCA 102.35

For example, in R v Kent [2009] VSC 375, the offender pleaded guilty to one count of being a member of a terrorist organisation and one count of making a document connected with preparation for a terrorist act. Bongiorno JA observed at [41]:

The fact that Kent is currently suffering a psychiatric disorder…makes it appropriate to take into account the probable conditions under which he will serve his sentence and the effect of those conditions on his psychological state.

However, the risk of imprisonment exacerbating an offender’s mental condition will not be a mitigating factor where that risk stems from a custodial authority imposing particular conditions on the prisoner. In such a case it must be assumed that the custodial authorities, in classifying offenders and imposing particular conditions on them, will not unreasonably expose the offender to a risk of exacerbation of their mental condition.

In R v Benbrika [2009] VSC 21, the evidence showed that if the offender were to remain in a maximum security facility after sentencing, there was little doubt that his mental health would deteriorate severely. Bongiorno J took the onerous conditions of imprisonment into account, but in relation to the mental condition of the offender, stated at [202]-[203]:

The problem which faces this Court in sentencing Raad and applying the principles in Verdins is that the classification and placement of prisoners is not a matter for the Court but rather for the Executive Government. Of course the Executive is bound by law to exercise its custodial powers according to law… A custodial authority which, unreasonably, placed a prisoner in circumstances where it was reasonably foreseeable that to do so would expose that prisoner to a risk of serious psychiatric injury would be in breach of its legal obligations to that prisoner.

Bongiorno J continued at [206]

…it must be assumed that the custodial authorities will discharge their legal obligation to Raad and his fellow prisoners appropriately so that none of them will be unreasonably exposed to the risk of an exacerbation of psychiatric symptoms because of the conditions of their incarceration.

3.11 Public Profile

In the case of R v Laws (No 2) [2000] NSWSC 885, Wood CJ imposed a suspended sentence of imprisonment on the offender. Due to the public profile of the offender, a full time custodial sentence and a home detention order were deemed inappropriate. Wood CJ explained at [44]:

After careful consideration, I am not persuaded that either is the appropriate option for this case. By reason of Mr Laws’ high profile and his well known stand on issues of law and order, I believe that he would face a significant risk of personal injury or worse if sentenced to periodic detention, a form of imprisonment that does not allow for segregation other than from those inmates who are serving full-time sentences… Home detention would risk attracting the derision of the community, and provide a juicy subject for lampoon by cartoonists and columnists, which would threaten respect for the law.

However, courts have cautioned that it is not generally appropriate that those who have a higher public profile should receive a less severe sentence. In Cargnello v DPP (Cth) [2012] NSWCCA 162, Basten JA (Price J and S G Campbell J agreeing) noted at [60]:

… it is not generally appropriate that those who are wealthier, or who have a higher public profile, should receive lesser sentences because they have more to lose as a result of conviction.

4. Other types of hardship to the offender recognised under common law

4.1 Public opprobrium

It is unclear whether hardship resulting from public opprobrium may be taken into account as a mitigating factor at sentence. 36 McHugh J stated in Ryan v The Queen [2001] HCA 21, [53] that taking it into account ‘would seem to favour the powerful and well known over those who were lesser known’. However, public opprobrium has been taken into account in the sentencing of federal offenders. 37

In R v Jones [2011] QCA 147, the Court considered an appeal against a federal sentence imposed for using a carriage service to access child pornography material and state sentences imposed for possessing child exploitation material. The offender argued that the sentencing judge failed to accord any weight to the public shaming that the offender underwent by reason of a front page article published in a local newspaper.

Daubney J (Muir and White JJA agreeing) stated at [17]:

In respect of the first of these propositions, there is a difference of judicial opinion as to the weight, if any, to be accorded to “public shaming” or “public opprobrium” in the sentencing process [R v Burdon; ex parte Attorney-General (Qld) [2005] QCA 147]. Whether a sentencing judge takes “public shaming” into account, and the weight to be applied to that factor in the sentencing process, will depend on the circumstances of the particular case, including by reference to:

(a) the identity and position of the accused;

(b) the nature and seriousness of the offences;

(c) the circumstances of the offending conduct (and the relevance of the identity and/or position of the accused in those circumstances);

(d) the nature, content, duration and extent of the public communication which induces the opprobrium, and

The Court in R v Jones [2011] QCA 147, found there was no evidence to support the submission that ‘the applicant’s exposure and shaming was significantly greater than usual’, and concluded at [21]:

It seems to me that if an accused would seek to persuade a sentencing judge that “public shaming” is a relevant factor to be considered in a particular case, then something more is required than mere assertion that the level of exposure and shaming was “significantly greater than usual”.

4.1.1 Relevance of identity and/or position to offending conduct to be considered

Whether a sentencing judge takes public opprobrium into account will depend on the circumstances of the case, including the relevance of the identity and/or position of the accused to the offending conduct: R v Jones [2011] QCA 147, [17]. Where an offender’s status is used to commit the offences or further their commission, public opprobrium is unlikely to be a significant mitigating factor. 39

It may also be important to distinguish the case where the person’s reputation is, apart from its destruction, independent of the offence and the case where the person’s reputation and office have been used or abused in the course of the criminal conduct. In the latter case, there may be good reason to disregard the destruction of reputation resulting from an abuse of trust: see R v Jackson and Hakim (1988) 33 A Crim R 413 at 436-437, referred to by Callinan J in Ryan [[2001] HCA 21] at [176].

4.1.2 Public opprobrium and particular offences

4.1.2.1 Offences involving child exploitation

In R v Poynder [2007] NSWCCA 157 the offender was convicted of offences involving the sexual exploitation of children. James J (Rothman and Harrison JJ agreeing) stated that ‘[s]ome allowance, albeit only limited, could be made for the public humiliation the respondent had suffered.’ 40

However, in Sabel v The Queen [2014] NSWCCA 101 the offender argued that he would suffer adverse social consequences as a result of convictions for accessing child pornography. The Court rejected this submission, 41 stating at [211]:

To the extent that the appellant’s further submission relates to adverse social consequences, we are of the opinion that even if the remarks made in the authorities to which we have referred continue to be good law in the context of fraud and tax evasion, they do not apply in relation to the offences under consideration here.Any social embarrassment or consequence that the appellant may suffer from being convicted of accessing and possessing child pornography is a direct result of his offending conduct, the underlying nature of which is exploitative of children (emphasis added).

4.1.2.2 White-collar offences

In DPP v O’Reilly [2010] VSC 138, the Court declined to give public opprobrium significant weight where the offender was convicted of insider trading. Forrest J stated at [35]-[36]:

Mr Richter has directed me to various press articles which demonstrate the public humiliation which no doubt will reach its peak in tomorrow morning’s press. Whilst this is a factor I am entitled to take into account as a punishment already suffered, I do not consider it ought be accorded significant weight.

The public humiliation you have suffered is no more than a by-product of your offending, given bite by your accomplished and exemplary prior history. Informal public shaming in the media in my consideration can never be a substitute for the formal expression by society through its courts that a member of that society has committed a wrong. See ASIC v Vizard (2005) 145 FLR 57, at 66. Those who commit this type of offence can expect the same level of scrutiny as you have suffered. If your public humiliation acts as a disincentive to those considering offending in this way, then perhaps a small measure of general deterrence is achieved.

4.2 Loss of employment or employment prospects

Where an offender suffers a loss of employment as a result of committing the offence, this may be a factor which mitigates the sentence imposed: R v Martin (1990) 47 A Crim R 168, 174-175. 42

However, where the offence(s) involve the abuse of the offender’s professional position, the loss of employment is unlikely to be a significant mitigating factor: R v TA [2003] NSWCCA 191, [32].

Where the loss of employment is merely a consequence of the imposition of a sentence of imprisonment, this is unlikely to mitigate a sentence. 43 In Cargnello v DPP (Cth) [2012] NSWCCA 162, the Court noted that ‘no particular diminution in sentence should be accorded for consequences of imprisonment, which will, in a general sense, be common to all offenders subject to custodial sentences’. 44

Loss of employment is, of course, but a common incident of both criminal activity and imprisonment and not a matter deserving of special consideration when the issue of the length of a term of imprisonment which must necessarily be imposed is under consideration. That is not to say it is irrelevant.The length of a sentence imposed for a serious drug offence is likely to have an impact on an offender’s life in terms of wife, children, job prospects and the like from which he may well never recover or, at the least, from which recovery will be difficult and in any judgment as to the severity of punishment it would be wrong to ignore these factors (emphasis added).

Some allowance could properly be made for the severe extra-curial punishment the respondent had suffered and would suffer, including the virtually certain loss of his profession of 25 years and his livelihood. 46

4.3 Financial Hardship

Where the offender is suffering, or will suffer adverse financial consequences as a result of the conviction and/or sentence, a court may take this into account. 47 Professor Freiberg has noted that while loss of future income or pension rights may count in mitigation, ‘courts around Australia are not consistent on this matter’. 48

In Commissioner of Taxation v Baffsky [2001] NSWCCA 332,Spigelman CJ found that the sentencing judge had not erred in taking into account the offender had been made bankrupt by the Commissioner of Taxation ‘as a matter of hardship’, and stated that such hardship was relevant as an ‘antecedent’ under s 16A(2)(m) and also to an assessment of the need to ‘adequately punish’ an offender for the offence under s 16A(2)(k).

In cases of serious offending, financial losses may be of little significance in the sentencing process. In the state case of R v Liddy (No 2) [2002] SASC 306, Mullighan J reviewed the offender’s loss of future income and future superannuation benefits and stated at [103]:

I accept that the appellant has sustained substantial losses by his early retirement and that he would have lost his position as a magistrate upon his having been convicted of the offences had he not retired. In cases of serious criminal offending, financial losses of this nature can have limited impact in the sentencing process. It would be an error in principle that offenders without financial losses must serve longer sentences of imprisonment than wealthy offenders who commit the same crimes and suffer financial losses. In the present context these losses are of virtually no significance in view of the seriousness of the crimes, the circumstances in which they were committed and the need to impose a sentence which reflects adequate punishment, protection of the community and general and personal deterrence (emphasis added).

4.4 Loss of statutory licence to practice or trade

Where an offender will lose a statutory licence, which enables them to practice or trade as a result of their conviction, this may be taken into account as a mitigating factor. 49

In the state case of Einfeld v The Queen [2010] NSWCCA 87, [95] Basten JA held that it was legitimate to take into account, in mitigation of sentence, the withdrawal of the offender’s commission as Queen’s Counsel, the non-renewal of his legal practising certificate, and the removal of his name from the roll of legal practitioners.

However, where the offender’s disqualification results from criminal conduct in the course of the employment from which the offender is disqualified, it is of limited significance at sentence. 50

For example, in R v Zerafa [2013] NSWCCA 222 the evidence indicated that the Institute of Chartered Accountants would strike the offender’s name from the relevant register. Hoeben CJ at CL (Latham J agreeing) stated at [92]:

While I accept the relevance of the extra curial punishment likely to be suffered by the respondent as a mitigating factor, its effect is limited. As with insider trading cases, it must have been anticipated by the respondent that an inevitable consequence, if his offending were discovered and successfully prosecuted, would be that he would be struck off the role of chartered accountants as not being a fit and proper person to pursue that profession. This was a risk which the respondent chose to take when he facilitated the operation of the scheme for 7 years.

4.4.1 Disqualification from managing a corporation

Courts have frequently taken into account, as a matter of hardship, the disqualification of white-collar offenders from corporate governance as a result of the recording of a conviction. 51

As a result of being convicted for these offences, the offender will be automatically disqualified from managing a corporation for a period of five years. In Rich v ASIC [2004] HCA 42, (2004) 220 CLR 129 the plurality held that disqualification from holding such office was a penalty. The Court acknowledged that disqualification orders under the Act performed a dual role of the protection of the public and as a penalty imposed on the person against whom it was made. It follows that this is a matter which the Court should take into account when considering sentence.

4.5 Effect on the offender of hardship to dependants

A court may take into account the effect on the offender of the hardship caused to others by their imprisonment. 52 The ‘exceptional circumstances’ test applicable to s 16A(2)(p) has no application to a consideration of such hardship. 53

The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor – for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation [R v Williams [2004] VSC 429, [16]]. These are conventional issues of mitigation, and they are not subject to the ‘exceptional circumstances’ limitation.

In Dong v DPP (Cth) [2016] VSCA 51 the offender appealed against a total effective sentence of 5 years and 9 months imprisonment imposing for drug trafficking offences. Evidence was tendered that the offender was pregnant at the time of sentencing, a fact not known to the sentencing judge on the date of sentencing. The offender had discovered that she was pregnant the day before she was sentenced and had not informed her legal advisors as she was embarrassed. Since the date of sentencing, the offender had given birth and was caring for her child in a mothers and babies unit of the prison. On appeal, the Court admitted the evidence of her pregnancy and the child’s subsequent birth. On the basis of this new evidence, the sentence was reduced to a total of 5 years. The Court reasoned at [31]:

What has changed is the burden of imprisonment. The applicant’s anxiety about her deportation, and concern about how her life in China would be affected by the convictions, has been exacerbated by the fact that she now has a child who will also be deported. More importantly, the hardship which the applicant would inevitably have suffered as a result of isolation from her family has been exacerbated by the birth of her child, both in relation to her personal difficulties in caring for the child in custody and in relation to the anxiety and distress created as a consequence of the child’s isolation from the family in China.

The ALRC recommends that federal sentencing legislation should expressly recognise as a sentencing factor the likely impact of a particular sentence on the offender, including that the offender’s circumstances may result in imprisonment having an unusually severe impact on him or her: Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [6.120].↩

Mazza JA found that the issue of whether any mitigation may be given to the conditions of custody and the weight to be attached to this factor are very fact sensitive, and that in the circumstances of this case the conditions in which the offender was held before being sentenced were not mitigatory: Milenkovski v Western Australia [2014] WASCA 48,[213] (Mazza JA). ↩

Leave to appeal to the Full Court was refused in Tazroo v Police [2005] SASC 126. The Court stated at [11]: ‘Sulan J’s analysis of the principles relating to the giving of credit where the imprisonment will give rise to undue hardship was correct. A reduction on this ground was not appropriate in the present case.’ ↩

Houghton v Western Australia [2006] WASCA, [26] (Steytler P, Roberts-Smith JA and Murray AJA agreeing). See also R v Durocher-Yvon [2003] NSWCCA 299 where Howie J (Sheller JA and Sully J agreeing) stated at [23] ‘In some cases such as prison informers or persons giving assistance to the authorities, the court may confidently assume that the offender will spend most, if not all, of the sentence in some form of strict protection which will carry with it severe physical and mental hardships over and above the normal prison experience. In other cases, such as child sex offenders, the court should recognise that to a degree the range of sentences imposed already has an element of leniency built into it because sentences for such offences are normally reduced to take this factor into account.’ See further Western Australia v O’Kane [2011] WASCA 24,[70]. ↩

See also R v De Silva [2011] NSWSC 24 where the offender, a foreign national, was convicted of insider trading. Buddin J stated at [70] ‘… I have not overlooked the fact that he will be serving his sentence in a foreign country away from the support of his family: Although, see generally R v Ferrer-Esis (1991) 55 A Crim R 231 at 239.’ ↩

This approach was approved on appeal in Lodhi v The Queen [2007] NSWCCA 360. Price J (Barr J and Spigelman CJ agreeing) stated at [254]: ‘His Honour was required to take into account in favour of the appellant the segregated pre-sentence custody and the likelihood it would continue in determining the length of the sentences to be imposed: R v Totten [2003] NSWCCA 207; R v Burchell (1987) 34 A Crim R 148. It is evident that he did so… Whealy J’s assessment that the allowance should not be “substantial” does not mean that his Honour did not give real weight to the appellant’s custodial conditions. This was a matter within his Honour’s discretion and no error in the exercise of the discretion has been demonstrated.’ ↩

In Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [27] it was noted that the word ‘antecedents’ is ‘wide enough to include all aspects, favourable and unfavourable of an offenders background, past life, personal, family, social, employment and vocational circumstances, and of his current way of life and its inter-action with the lives and welfare of others.’ ↩

The High Court has not expressed a clear view on this point. See Ryan v The Queen [2001] HCA 21 where Kirby J (at [123]) and Callinan J (at [177]) found that public humiliation should be taken into account, while McHugh J (at [53]) and Hayne J (at [157] disagreed. ↩

The Court in R v Jones [2011] QCA 147 cited the following observations of Howie J in Kenny v The Queen [2010] NSWCCA 6, [49] which were cited with apparent approval in Einfeld v The Queen [2010] NSWCCA 87, [100] (Basten JA), at [19]: ‘My initial reaction was that public humiliation that arises from the commission of the offence should not alone give rise to a mitigation of sentence without more. However … the issue appears to be unresolved in the High Court … Clearly there may be an exceptional case where it reaches such proportion that it has had some physical or psychological effect on the person so that it could be taken into account as additional punishment (emphasis added).’ See also the discussion of the authorities by Basten JA in in Kenny v The Queen [2010] NSWCCA 6, [9]-[24]. ↩

The Court did not make reference to the earlier case of Poynder in rejecting the submission. ↩

See also Ryan v The Queen [2001] HCA 21 where McHugh J stated at [54]: ‘It is legitimate, for example, to take into account that the conviction will result in the offender losing his or her employment or profession or that he or she will forfeit benefits such as superannuation.’ ↩

See also Einfeld v The Queen [2010] NSWCCA 87, [89] where Basten JA noted that ‘[t]aking account of the economic consequences (including loss of employment) which inevitably follow from imprisonment, may mean that those previously in employment will receive shorter sentences than those who were unemployed.’ ↩

R v McDermott (1990) 49 A Crim R 105, 117. Gallop J (Foster J agreeing) stated: ‘In my opinion the learned judge also failed to give sufficient weight to the fact that the appellant had lost his career path. The loss of employment in a calling for which the prisoner has been trained can be a very heavy punishment: Hook v Ralphs (1987) 45 SASR 529 at 543; 27 A Crim R 212 at 226 citing Sargeant (1974) 60 Cr App R 74 at 76 and Palmer (1980) 2 Cr App R (S) 93 at 95.’ See also the state case of R v TA [2003] NSWCCA 191, [32] (Adams J, Spigelman CJ and Dowd J agreeing), referred to in Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [6.112]. For recent application in the federal context, see ACCC v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267,[126] (Mansfield J). ↩

There was evidence that the Legal Services Commissioner had initiated complaints against the respondent that, by reason of the conduct giving rise to the offences for which he was sentenced, the respondent was not a fit and proper person to hold a practicing certificate. The sentencing judge had acted on the basis that the charges would be pursued and the respondent would lose his profession as a solicitor: R v Poynder [2007] NSWCCA 157, [22]. ↩

R v Chaloner (1990) 49 A Crim R 370, 376 (Kirby P, Lusher AJ and Sharpe J agreeing). See also Ryan v The Queen [2001] HCA 21, [54] where McHugh J noted that it is legitimate to take into account that a conviction will result in the offender forfeiting benefits such as superannuation. See further Kenny v The Queen [2010] NSWCCA 46, [44] (Howie JA, Johnson J and Basten JA agreeing). ↩

The ALRC recommends that federal sentencing legislation specifies as an additional sentencing factor the likely civil and administrative consequences of a finding of guilt or a conviction in relation to the offence: Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [6.113].↩

See the state case of R v Talia [2009] VSCA 260, where the Court stated at [28]: ‘In our opinion, the disqualification, although an extra-curial penalty, did not necessarily constitute a circumstance of mitigation; and to the extent that it might have been regarded as having that character, it was a circumstance of modest weight. There seems to us to be a distinct difference between a disqualification resulting from criminal conduct in the course of the employment from which the person is disqualified and criminal conduct remote from that employment but having that consequence. Should a teacher who is denied a return to that profession after he or she criminally molests a student be entitled to have the loss of profession treated as a circumstance of mitigation? What of the legal practitioner who misuses trust moneys and is precluded from practice? These situations are different to that which obtains when the offending conduct is remote from the employment from which the offender is incidentally precluded. In the latter class of case there might be a considerably stronger argument in favour of the incidental loss of employment being treated as a circumstance of mitigation.’ ↩